Shenck's Administration Account, 5 Watts 84

The opinion of the' Court was delivered by Gibson, C. J. The appellee would have been entitled to exhibit an account, had he been in possession of assets not already accounted for, or had he been out of pocket for disbursements in his office; but not to give him a remedy for a debt due him by the testator in his lifetime. On the face of the account, nothing appears to charge him but the assets comprised in the inventory, which, confessedly, never came to his hands, having been accounted for by the other executor.

Pie could not, therefore, raise an account merely to let in his claim in the character' of an ordinary creditor, by charging himself with the inventory, on the one hand, and taking credit for it on the other. But as he could not sue himself, it is asked, how else could he avail himself of his right to retain,' or enforce his demand by any means whatever?

Even the allowance of an account would not enable him to retain out of what was never in his hands. - He might have renounced and sued his fellow, or procured him to exhibit his debt as retained to his use at the settlement of the preceding account, and if there had been a doubt of its solidity, it would have been put in a train to be resolved by a jury; but through whatever medium exhibited, the claim could certainly not be sustained by his own testimony.

Demands not exceeding 40 shillings may be so sustained, but all beyond must be established in the ordinary way, and an executor proceeding in the character of a creditor, has, in this respect, no peculiar privilege. The auditors, were, therefore, plainly right on the merits, but had they authority to unravel the decree ? They undoubtedly had it so far as the power of this court could confer it by a reference of the exceptions taken here.

These were permitted to be filed before we had settled the practice, under the act of 1833, relative to orphans’ courts, which we have since construed to preclude exceptions that were not taken in the orphans’ court. But whatever were our powers of reference when the exceptions were taken, it is certain we had competent power by the supplement of the 14th of May 1835, before the auditors acted on them. We might then have referred the entire subject to the same auditors, but to have vacated the former order, to make way for a new one on the same terms, would have been nugatory.

Suffering the original to stand, was equivalent to the production of a new one, and, on the principle of ratihabUio, gave the auditors exactly the same power. They had consequently competent authority to act on the exceptions. Report confirmed.